1 INTRODUCTION
2 Six named Plaintiffs seek to represent two broad classes of athletes who contracted with
3 Zuffa, LLC (“Zuffa”), doing business as the Ultimate Fighting Championship (“UFC”), over a
4 six-and-a-half-year period. Plaintiffs, all of whom are retired or compete for rivals of the UFC,
5 assert that athletes suffered a common antitrust injury from a “Scheme” defined in their motion
6 for class certification. Pls. Mot. for Class Certification (“Pls. Mot.”), ECF No. 518 at 1.
7 Previously, in their Complaint, Plaintiffs alleged a different scheme to monopolize the market for
8 live Mixed Martial Arts (“MMA”) bouts and monopsonize the market for “Elite MMA Fighter
9 Services.” Plaintiffs’ Consolidated Amended Complaint (“CAC”), ECF Nos. 208 ¶ 1; ECF No. 1
10 ¶ 1 (Original Complaint). The Court denied Zuffa’s motion to dismiss based on those allegations.
11 ECF No. 314 at 15-16. Plaintiffs’ new “Scheme” omits any allegations of monopolization of
12 venues, television outlets, or sponsors, now focuses only on alleged acts to create a monopsony
13 for athlete services. Plaintiffs’ reconstituted case does not survive the rigorous scrutiny needed to
14 establish that the requirements of Rule 23 have been met.
15 According to Plaintiffs, Zuffa succeeded through anticompetitive conduct rather than its
16 documented efforts to bring the sport of MMA from a niche into the mainstream. But the
17 remarkable growth of the sport is a testament to Zuffa and its owners’ substantial investment and
18 business acumen. When Frank and Lorenzo Fertitta bought the UFC in 2001 for $2 million, the
19 sport was banned in 36 states and had been labeled by Senator John McCain as “human
20 1
cockfighting.” Through its extensive investment of time and resources, Zuffa was instrumental
21 in persuading regulators to legalize the sport, which is now legal in all 50 states, and in changing
22 2 3
the public perception of MMA. During the early years, Zuffa lost nearly $40 million. Only after
23

1 Zuffa took a risk on an untested reality show, The Ultimate Fighter, did Zuffa begin to turn a
4 5
2 profit. As its momentum grew, Zuffa invested heavily in its athletes and in its brand. Zuffa
3 prided itself on being an industry leader both “from a compensation perspective” and from a
6
4 “service perspective” and, as a result, attracted some of the sport’s brightest talent. The number
5 of events Zuffa promoted grew from 18 in 2006 to 41 in 2015, creating more opportunities for
7
6 athletes in the sport and more quality events for viewers to enjoy. As Zuffa’s business became
7 more profitable, UFC athletes, including the named Plaintiffs, shared in that success with
8
8 continually rising compensation.
9 Plaintiffs do not dispute that athletes’ pay for competing in the UFC increased during the
10 class period. Instead, they assert that Zuffa paid its athletes a lower share of its revenue than
11 otherwise would exist absent Zuffa’s “Scheme” of monopsony. Plaintiffs seek to represent a
12 class of athletes who competed in UFC bouts during the class period (the “Bout Class”) and a
13 class of athletes whose identities Zuffa allegedly “expropriated” (the “Identity Class”). Plaintiff
14 Quarry is only proposed as a representative for the Identity Class.
15 The proposed Bout Class is defective for myriad reasons, the first of which is that
16 Plaintiffs cannot adequately represent the class because none of them currently compete in UFC-
17 promoted bouts, and their claims are not typical of others in the putative class, such as the current
18 athletes they seek to represent. The class representatives, in contrast to many in the putative
19 class, have no interest in the continued viability of the UFC and are interested only in damages.
20 For this reason, courts regularly reject proposed class actions by class representatives who are no
21
3
22 Topel Decl. ¶ 10; Ex. 62, Michael A. Hitt, R. Duane Ireland, Robert E. Hoskisson, Strategic
Management Cases: Competitiveness and Globalization (10th Edition, 2012) at 360.
4
23 Id. n.3.
5
24 Ex. 8, Hendrick 30(b)(6) Dep. (“Contracts Dep.”) at 147:13-148:17, 151:4-15; Ex. 9, Fitch Dep.
at 29:22-24 (“no other organization gives you that notoriety to pull you into an elite status just
25 because you fought for them. But the UFC does do that”).
6
Ex. 10, Batchvarova Dep. at 72:5-12.
26 7
Topel Rep. Ex. 30; Ex. 11, Epstein 30(b)(6) Dep. (“Acquisitions Dep.”) 98:20-99:3.
8
27 Topel Decl. ¶¶ 17-18 (“In short, athletes at all levels of rankings enjoyed increases in
compensation over the class period”).
28
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1 longer part of the defendant’s business, much less those who work for a rival. The class
2 representatives also have individual issues and unique defenses requiring mini-trials and are
3 pursuing arguments that would reduce or eliminate the damage claims of other class members.
4 Second, Plaintiffs also cannot establish all the elements of an antitrust violation with
5 common evidence. Plaintiffs broadly claim that Zuffa engaged in a “Scheme” to obtain market
6 dominance through exclusive contracts, and rely on allegations that they were “coerced” into
7 entering those contracts. Whether an athlete was exposed to (or even knew about) alleged
8 coercive acts is an inherently individualized inquiry. There is no example in law of a class of
9 1,200 “coerced” individuals. Furthermore, the existence of local markets for live MMA
10 entertainment means that individual issues predominate for all of those markets.
11 To meet the standards of 23(b)(3), Plaintiffs must show that all or virtually all class
12 members suffered antitrust injury (called “common impact”). Antitrust injury is ordinarily
13 measured by lost money, in this case, lost compensation. Plaintiffs do not show that Zuffa
14 decreased athlete compensation; instead they assert that athletes are entitled to a larger share of
15 Zuffa’s revenues or “wage share.” Plaintiffs rely on a regression analysis from their expert
16 Dr. Singer to attempt to show that Zuffa has reduced the wage share of athletes, but the same
17 regression, when applied to actual compensation, shows no antitrust injury. Unsurprisingly, no
18 court has certified a monopsony class action, where, as here, the plaintiffs tried to offer evidence
19 of a lower wage share to show all or virtually all class members suffered antitrust injury, much
20 less when such evidence conflicted with analyses showing no impact on actual compensation.
21 Plaintiffs’ evidence of common impact also falls far short of the rigorous analysis standard
22 required for class certification in other ways. First, the only econometric model that Plaintiffs
23 offer to prove that all or virtually all class members suffered antitrust injury cannot show
24 individual impact because it improperly relies on averages that assume, rather than prove,
25 common impact. Second, although Plaintiffs broadly assert that documentary and testimonial
26 evidence reflect that athlete compensation was artificially low during the class period, this
27 evidence consists of individual anecdotes and does not prove impact with common evidence.
28 Third, Zuffa does not have a pay structure or follow a policy of “internal equity,” and Plaintiffs’
3
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1 expert’s regression attempting to demonstrate such a structure cannot distinguish whether
2 common or individual factors account for the variations in athlete compensation.
3 Plaintiffs’ proposed methodologies for proving impact and damages also run afoul of the
4 Supreme Court’s holding in Comcast Corp. v. Behrend, 569 U.S. 27 (2013), because the
5 regressions of Plaintiffs’ expert cannot separate lawful from unlawful conduct nor have their
6 experts translated the alleged “Scheme” into the theory of damages. And Plaintiffs have offered
7 no model tying the actual allegations of their Amended Complaint to any injury or damages.
8 Additionally, the putative class is also unmanageable. Plaintiffs argue that as part of the
9 “Scheme,” Zuffa has contracted with more athletes than it needs and that in a but-for world many
10 UFC athletes would not be competing for Zuffa. Plaintiffs have not identified which athletes
11 would still be competing for Zuffa or any other MMA promoter. The proposed class is riddled
12 with flaw after flaw, each of which individually has caused courts to reject class certification.
13 The proposed Identity Class is similarly flawed because individual issues predominate. Finally,
14 as former UFC athletes, Plaintiffs lack standing to pursue injunctive relief.
15 FACTUAL BACKGROUND
16 I. Athletes Willingly Contract With Zuffa For Many Distinct Reasons.
17 The athletes on the UFC’s roster during the class period are not interchangeable. The over
18 1,200 athletes in the proposed Bout Class have varying levels of experience, skill, potential, and
19 notoriety. Each one chose to sign, and sometimes re-sign, with Zuffa based on his or her
20 subjective assessment of the value of participating in UFC bouts. For example, athletes
21 (including the named Plaintiffs) have offered the following explanations for their choice to sign a
22 contract with Zuffa:
23  “I like fighting for UFC for a lot of reasons. I get good compensation; they put a lot of
24 resources into marketing and promoting me and my fights. . . .” (Ex. 12, Decl. of
Stephan Bonnar).
25
 “Participating in the UFC has increased my exposure to sponsorship opportunities due
26 to the amount of television air time and recognition that it generates. Other
opportunities have followed along with increased notoriety and respect, such as the
27
opportunity to commentate on MMA for ESPN and the chance to open my own
28 training center.” (Ex. 13, Decl. of Kenny Florian).
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1
 “There are several reasons why I believe the UFC is the best MMA organization to
2 fight in. First, it has provided me with the best compensation and incentives. Second,
3 it has expended the most resources in promoting me and the events I fought in . . . .
Fourth, the UFC has attracted some of the best fighter talent, assuring me the
4 opportunity to fight other elite fighters, to try to become the best fighter in the world at
my weight class, and to build my reputation so I can earn more money in the form of
5 sponsorships and PPV shares. Fifth, the UFC is extremely well-run and organized.”
(Ex. 14, Decl. of Brandon Vera).
6

7  “At the time, I wanted to compete against what was looked at as – as the top guys.”
(Ex. 15, Plaintiff Vazquez describing why he joined the Zuffa-owned WEC, Vazquez
8 Dep. at 38:19-39:-2).
9  “I think the goal of every fighter is to fight at the highest level and to become
10 champion one day. And if you’re trying to fight, it doesn’t matter if you’re the
champion, you know, big fish in a small pond. You could be the best of a small
11 community. But really to test yourself and to know that you’re the best in the world,
that takes becoming champion of the UFC.” (Ex. 16, Kingsbury Dep. at 51:15-22).
12
 “I could fight in many other promotions, but choose the UFC because I trust how they
13
handle their business and I know how I will be treated.” (Ex. 17, Decl. of Joe Lauzon).
14
 “The UFC sets itself apart within MMA by being the most professional and complete
15 organization in the world from top to bottom. This starts with the staff that the UFC
has and the way that the organization and staff treat the fighters both personally and
16 professionally.” (Ex. 18, Decl. of Jim Miller).
17
The contract provisions that Plaintiffs challenge as anticompetitive have been central to
18
Zuffa’s ability to succeed and grow the sport of MMA. For example, the exclusivity provision,
19
which is at the heart of Plaintiffs’ claim, encouraged investment in both the UFC’s brand and in
20
individual athletes and allowed Zuffa to grow its business and the sport of MMA. Topel Decl.
21
¶¶ 12-13. Zuffa’s tolling provisions ensure Zuffa has a reasonable amount of time to provide the
22
athlete with the contracted number of bouts under the agreement, taking into account injuries and
23 9
athletes’ decisions to take time off. Zuffa’s executives have confirmed the importance of these
24

10
1 provisions (which are common in many industries, including sports) to the successful operation
11
2 of their business and their ability to expand the output of MMA events.
3 Contrary to Plaintiffs’ allegations, Zuffa’s contracts with athletes are not perpetual. The
4 contracts between Zuffa and athletes last for a defined term, which is the shorter of the negotiated
12
5 number of bouts or number of months. Athletes leave Zuffa in a variety of ways. Some athletes
6 may be cut before the end of their contract, rendering them free to immediately sign with Zuffa’s
13 14
7 competitors. Others complete the negotiated term of their contracts and enter free agency.
15
8 Some free agents re-sign with Zuffa and others sign with Zuffa’s competitors.
9

10
16
11

12 Other athletes re-sign with Zuffa before their contracts expire. Before an athlete’s last
13 bout on a contract, Zuffa often offers higher guaranteed compensation for that next bout as an
17
14 incentive to sign a new agreement. Athletes are free to reject this offer, but many willingly
18
15 accept, and others specifically request to re-sign new contracts. Whether an athlete will accept
16 Zuffa’s offer “is a decision that would have to be made by each individual fighter on a case by
17 case basis” because “there are many, many factors that go into an individual fighter and/or his
18

1 representatives determinations of the bases on whether they may choose to enter into a new
2 agreement or to serve out the term of an existing agreement” including “compensation” and
3 “different opportunities that may exist other places.” Ex. 28, Mersch Dep. 230:9-230:19.
4 During the class period, many other established and well-funded MMA promoters
5 competed to sign MMA athletes. In every year from 2011 to 2016, over 200 former UFC athletes
19
6 competed for other promoters, including:
7  Bellator, which is owned by media giant Viacom and run by Scott Coker, former head
20
8 of Strikeforce. Bellator has put on events that have repeatedly attracted more
viewers than UFC events and have reached up to 2.7 million viewers, Topel Decl.
9 ¶ 16, with 1.3 million viewers recently watching the bout between former UFC
21
athletes Quinton “Rampage” Jackson and Chael Sonnen ;
10

11  Professional Fighters League (“PFL”) (previously known as “World Series of
Fighting” or “WSOF”), which has a broadcasting relationship with NBC Sports
12 Network and recently announced a partnership with MGM Television and Mark
Burnett in advance of its “season” that will culminate with playoffs and crown winners
13 22
with $1 million prizes for each weight-class champion ;
14
 ONE Championship (previously known as ONE FC), the self-proclaimed “World’s
15 Largest Martial Arts Organization” broadcasts to 1.7 billion potential viewers
23
worldwide ; and
16

17  Absolute Championship Berkut, a Russia-based promotion that has held over twenty
events for each of the past two years. Topel Decl. ¶ 16.
18
There is no testimony that promoters could not obtain MMA athletes during the class
19
period. The only evidence Plaintiffs cite of a promoter actually having problems accessing MMA
20
24
21 athletes is a misstatement of Prof. Topel’s deposition testimony and testimony about the IFL

1 (which existed from 2006-2008). Pls. Mot. at 11. Competing promoters have testified that Zuffa
25 26
2 has not impeded their ability to obtain athletes, and that MMA athletes are readily available.
3 II. Athlete Compensation.
4 Compensation for Zuffa’s athletes varies widely and is the product of negotiations with
5 athletes and their representatives. Ex. 42, Fertitta Dep. at 220:16-221:7. The top paid athletes in
6 the UFC make millions of dollars per bout, while less experienced athletes make tens of
7 thousands of dollars, and others fall somewhere in between.
8 Zuffa does not have a formal compensation structure. A group of Zuffa executives
9 negotiate compensation with athletes. Ex. 43, Silva Dep. at 370:17-23. These executives
10 consider a variety of objective and subjective factors when deciding what to offer an athlete. See
11 p. 31 n.47, infra. While these executives may consider an athlete’s record, rank, and weight class
12 when putting together an offer, they also look at the athlete’s notoriety, popularity, and long-term
13 potential. Id. As Zuffa’s COO explained, “all athletes are different . . . . so every negotiation’s
14 different.” Ex. 44, Epstein 30(b)(6) Dep. (“Compensation Dep.”) at 31:5-33:3. The result, as
15 reflected in Zuffa’s compensation data, is that the amount and form of athlete compensation
16 varies widely, although compensation for all UFC athletes has increased throughout the class
17 period. Blair Rep. ¶ 79 & App. F, Exs. 87-89; Ex. 92; Topel Decl. ¶¶ 17-18.
18 III. The Proposed Classes.
19 Notwithstanding Zuffa’s role in the exceptional growth of the sport of MMA and the
20 increase in athlete compensation, the six former UFC athlete Plaintiffs seek to represent the
21 proposed “Bout Class” and “Identity Class” and allege that Zuffa systematically suppressed the
22 compensation paid to athletes for their participation in bouts and for their identity rights. Plaintiff
23

1 Quarry is only proposed as a representative for the Identity Class. None of the named Plaintiffs
2 are current UFC athletes, and the two that are still active professional MMA athletes—Brandon
27
3 Vera and Jon Fitch—compete for Zuffa’s competitors.
4 In their Amended Complaint, Plaintiffs allege that Zuffa gained and enhanced monopoly
5 and monopsony power using exclusive arrangements with athletes, venues, and sponsors, and by
6 acquiring certain rival MMA promoters. CAC ¶¶ 7, 10. This Court denied Zuffa’s motion to
7 dismiss based on Plaintiffs’ allegations of both monopoly and monopsony power. ECF No. 314
8 at 15-16 (“Plaintiffs allege multiple acts that, as a whole, constitute an anticompetitive scheme”
9 including “exclusive dealing arrangements,” “use of threats” and that “the UFC has also used its
10 ill-gotten power in the Relevant markets to restrict its actual or potential rivals’ access to top
11 quality venues, sponsors, endorsements, PPV and television broadcast outlets”).
12 In seeking class certification, Plaintiffs now abandon the combination of monopoly and
13 monopsony allegations on which this Court denied the motion to dismiss, and recast the alleged
14 anticompetitive conduct as a multi-faceted “Scheme” of only monopsony-related claims.
15 According to Plaintiffs, the first part of the “Scheme” is the use of contractual provisions that
16 require exclusivity or extend the duration of UFC contracts with athletes. Pls. Mot. at 8-9.
17 Plaintiffs no longer include exclusive contracts with venues, sponsors or broadcasters as part of
18 their “Scheme.” Compare CAC ¶ 10 with Pls. Mot. at 11. The second part is “coercion.”
19 According to Plaintiffs, Zuffa coerced athletes to re-sign contracts, supposedly making Zuffa’s
20 contracts “effectively perpetual.” Pls. Mot. at 9. The third part is Zuffa’s acquisitions, which
28
21 Plaintiffs contend limited competitive opportunities for athletes. (In contrast, Plaintiffs’
22 economic expert Dr. Singer concluded that Zuffa’s acquisitions were not anticompetitive standing
23
27
24 Ex. 45 (Brandon Vera’s contract with One Championship); Ex. 46; Ex. 47 (Jon Fitch’s
contracts with World Series of Fighting); Ex. 48, Ariel Helwani, “Jon Fitch signs with Bellator,”
25
MMA Fighting (Mar. 1, 2018).
28
26 Zuffa acquired World Extreme Cagefighting, World Fighting Alliance, and PRIDE before the
class period. Only Zuffa’s acquisition of Strikeforce occurred during the class period.
27

1 actual compensation (not wage share) using Dr. Singer’s own regression, he found that athletes
2 were not harmed, Topel Decl. ¶ 22, which Dr. Singer does not dispute, Singer Dep. 295:6-296:8.
3 Prof. Topel also found serious errors in Dr. Singer’s proposed methodology of proving class-wide
4 impact; importantly, that Dr. Singer’s regression is incapable of separating out impact as a result
5 of the “Scheme” as opposed to legal and procompetitive conduct. Topel Decl. ¶¶ 19-20.
6 Analyzing Dr. Zimbalist’s opinions, Prof. Blair concluded that using wage share to
7 measure monopsony damages is improper. Prof. Blair also noted that Dr. Zimbalist violated
8 fundamental economic principles in comparing the UFC to improper yardsticks like the “Big 4”
9 sports and boxing. Blair Rep. ¶¶ 49-71. Prof. Blair further explained why comparing Zuffa’s
10 wage share to Strikeforce and Bellator is economically unsound. Id. ¶¶ 73-74. Prof. Blair also
11 described the high variability in Zuffa athlete compensation during the class period. Id. ¶ 79.
12 Professor Oyer evaluated both Drs. Singer’s and Zimbalist’s use of labor share of revenue
13 to see if it was consistent with industry-accepted practices in labor economics and determined it
14 was not. Prof. Oyer explained that “labor economists do not use labor share as a way to evaluate
15 worker compensation or to benchmark competition” and detailed the various flaws with
16 Plaintiffs’ experts’ approaches. Ex. 4, Expert Report of Paul Oyer ¶¶ 12-15.
17 LEGAL STANDARD FOR CLASS CERTIFICATION
18 To certify a class, Plaintiffs “must affirmatively demonstrate” compliance with Rule
19 23(a)’s requirements of (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy. Fed. R.
20 Civ. P. 23(a)(1)-(4); Comcast, 569 U.S. at 33. If Plaintiffs meet all of the threshold requirements
21 of 23(a), the court must determine if Plaintiffs satisfy at least one of the provisions of Rule 23(b).
22 Id. Plaintiffs claim to satisfy Rule 23(b)(3), which requires that “the questions of law or fact
23 common to class members predominate over any questions affecting only individual members”
24 (predominance), “and that a class action is superior to other available methods for fairly and
25 efficiently adjudicating the controversy” (superiority). Many courts have held that Plaintiffs must
26

11 competitors to fix prices or limit supply. Plaintiffs then refer to Zuffa’s unilateral conduct as a

12 “Scheme,” a term commonly used to describe horizontal price fixing arrangements among

13 competitors. But Plaintiffs have brought a Section 2 Sherman Act claim against a single business,

14 using an evolving theory of monopsonization. Plaintiffs rely on conduct like exclusive contracts,
31
15 which are ordinarily legal, not per se illegal, like price fixing. Where, as here, Plaintiffs allege

16
30
Plaintiffs attempt to circumvent this standard by distorting Tyson Foods, Inc. v. Bouaphakeo,
17 136 S. Ct. 1036, 1049 (2016) and inserting their own bracketed language: “The District Court
18 could have denied class certification on th[e] ground [that it agreed with Defendants’ experts]
only if it concluded that no reasonable juror could have believed that” plaintiffs’ experts were
19 right on the merits (emphasis added)).” Pls. Mot. at 22. In Tyson, the appeal followed a jury trial,
and the Petitioner never moved to exclude the expert testimony on sampling. The actual quote
20 refers to a factual issue that was for the jury to decide, with the Court concluding that whether
class certification could be denied based on such a factual issue required the traditional standards
21 for review of a jury verdict:
22
Reasonable minds may differ as to whether the average time Mericle calculated is
23 probative as to the time actually worked by each employee. Resolving that question,
however, is the near-exclusive province of the jury. The District Court could have denied
24 class certification on this ground only if it concluded that no reasonable juror could have
believed that the employees spent roughly equal time donning and doffing.
25

1 ARGUMENT
2 I. Named Plaintiffs Do Not Meet Rule 23(a)’s Requirements Of Typicality.
3 Plaintiffs contend that the six named Plaintiffs meet the Rule 23(a)(3) typicality
4 requirements because their claims “generally arise from the same events and the same legal
5 arguments” as the more than 1,200 absent putative class members. Pls. Mot. at 17. But Plaintiffs
6 ignore that they have “‘unique background and factual’” circumstances subject to defenses
7 atypical of the rest of the class. Ellis, 657 F.3d at 984-85 (citation omitted). “The purpose of the
8 typicality requirement is to assure that the interest of the named representative aligns with the
9 interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation
10 omitted).
11 A. Named Plaintiffs’ Alleged Lack of Bargaining Power Is Not Typical Of The
12 Class.

13 Named Plaintiffs do not meet the typicality requirements of Rule 23(a)(3) because they

14 concede that they had little or no negotiating leverage compared to other more prominent UFC

1 model, if accepted, shows that athletes with the most bargaining power were not injured by, and
2 actually benefitted from, the alleged conduct. Dr. Singer’s regression model predicts negative
3 damages for , meaning that in Plaintiffs’ but-for world absent the alleged
4 “Scheme” these athletes would have made less money. Topel Decl. ¶ 27; Ex. 2, Topel Rep. Ex.
5 34 ( ).
6 account for 27% of the total event compensation paid to UFC athletes in Dr. Singer’s
7 regression data during the class period. Declaration of Brent K. Nakamura (attached as Ex. B to
8 Isaacson Decl.) at ¶ 14.
9

10 . Topel Rep. Ex. 33. The evidence named Plaintiffs will use to prove impact
11 would harm the athletes with the most bargaining power, meaning named Plaintiffs’ claims are
12 not typical of these absent class members. See Deiter, 436 F.3d at 466-67 (“Plaintiff’s claim
13 cannot be so different from the claims of absent class members that their claims will not be
14 advanced by plaintiff’s proof of his own individual claim”).
15 B. Zuffa Has Individualized Defenses As To Certain Named Plaintiffs’ Claims.
16 “‘Class certification is inappropriate where a putative class representative is subject to
17 unique defenses which threaten to become the focus of the litigation.’” Hanon, 976 F.2d at 508
18 (collecting cases); Ellis, 657 F.3d at 984. The “unique and substantial vulnerability” of class
19 representatives with atypical circumstances and defenses supports denial of certification. Backus
20 v. ConAgra Foods, Inc., 2016 WL 7406505 at *4-5 (N.D. Cal. Dec. 22, 2016); accord
21 Valenzuela, 2017 WL 679095, at *14-16.
22 Zuffa has at least these unique defenses against the named Plaintiffs:
23  Nathan Quarry: As Zuffa explained in its motion for partial summary judgment,
Plaintiff Quarry did not enter into an agreement or compete in a bout with Zuffa
24
during the class period. As a result, Zuffa has specific statute of limitations defenses
25 that apply to Quarry that will not affect all other class members. Zuffa’s Mot. for
Partial Summ. J., ECF No. 347 (Motion); ECF No. 493 (Reply).
26
 Brandon Vera: Zuffa will present unique defenses to Plaintiff Vera’s claims:
27 (1) Vera was released at his request and left the UFC to compete for a rival MMA
28 promoter, and testified he was not coerced into signing a Zuffa contract, Ex. 56, Vera

1 Dep. at 182:7-24, (3) he executed a separate ratification that his execution of Zuffa’s
34
2 promotional agreements were not coerced, and (4) he competes for a rival MMA
promoter outside of the relevant geographic market. Pls. Mot. at 6.
3
 Cung Le: Plaintiff Le sent a letter to the California State Assembly in May 2012
4 stating: “I have representatives and advisors that assist me in negotiating agreements
and I do not believe any of the provisions of the agreements contain provisions that are
5 in any manner coercive.” Ex. 58. Le also intends to present a long individualized tale
6 at trial alleging that Zuffa improperly suspended him for a failed drug test, and after
the suspension was lifted, did not apologize to him. Ex. 68, Le Dep. 48:5-56:19, 61:7-
7 66:19, 159:14-168:10.

8  Javier Vazquez: Plaintiff Vazquez competed in only one bout for the UFC before
retiring in part because he did not want to attend a Zuffa-organized athlete summit.
9
Ex. 15, Vazquez Dep. 111:17-112:25. Vazquez also did not enter an agreement during
10 the class period, his last agreement was with the WEC and was assigned to the UFC.
Ex. 21; Ex. 59.
11
 Jon Fitch: Plaintiff Fitch claims that he was specifically targeted for unfair treatment
12 because of a dispute over video game licensing rights, Ex. 9, Fitch Dep. 79:12-21,
13 82:2:14, 161:4-171:23, and that executives at Zuffa did not like his fighting style and
deprived him of opportunities to fight for a championship title, id. at 83:1-85:2, 236:9-
14 242:22. Plaintiff Fitch also testified that his “biggest problem with [Zuffa] is they are
the sanctioning body and the promoter all in one.” Id. at 206:14-19. This conduct is
15 not part of the “Scheme.”
16
 Kyle Kingsbury: Plaintiff Kingsbury believed he “was being punished” in his
17 matchups since he was asked to compete against “extremely talented” athletes that
were not well-known. Ex. 16, Kingsbury Dep. 116:16-22. Kingsbury’s representative
18 also asked Zuffa Ex. 94; Ex. 60,
contradicting Plaintiffs’ claim that Zuffa has complete control over an athlete’s careers
19 and the timing of their bouts. Pls. Mot. 9.
20 II. Named Plaintiffs Do Not Meet Rule 23(a)’s Requirement of Adequacy.
21 The purpose of the “adequacy” requirement is to “uncover conflicts of interest between
22 named parties and the classes they seek to represent.” Amchem Prod., Inc. v. Windsor, 521 U.S.
23 591, 625 (1997); see also Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157, 1165 (9th Cir.
24 2013) (adequacy requirement designed to ensure an “‘absence of antagonism and a sharing of
25 interests between representatives and absentees’”).
26 Named plaintiffs who do not have a current relationship with Zuffa are inadequate
27
34
Ex. 57, Ratification by Brandon Vera.
28
17
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1 representatives for purposes of Rule 23(a)(4) for class members who do. See Ellis, 657 F.3d at
2 986 (“As former employees, Ellis and Horstman would not share an interest with class members
3 whose primary goal is to obtain injunctive relief. Thus, as the class currently stands, Ellis and
4 Horstman will not adequately protect the interests of the class”); Alfred v. Pepperidge Farm, Inc.,
5 2016 WL 7655793 at *3 (C.D. Cal. Aug. 5, 2016) (“significant, potential conflict” between
6 named Plaintiffs who were all former distributors and current distributor class members).
7 The named Plaintiffs either compete for Zuffa’s competitors or are retired from
8 professional MMA; none currently competes for the UFC. As a result, their incentive is to pursue
9 damages over injunctive relief and to maximize money damages regardless of the impact on
10 Zuffa’s business or current athletes. The named Plaintiffs in seeking damages or injunctive relief
11 need not have regard to the health of the business of the UFC—and the Plaintiffs competing for
12 competitors have an incentive to hurt the UFC business.
13 Ex. 61, Expert Report of
14 Elizabeth Kroger Davis ¶ 59.
15 These interests of the competing and retired named Plaintiffs conflict with current UFC
16 athlete class members who “presently depend on the economic viability of the defendant” and
17 have an incentive to ensure that it survives beyond this litigation. See Free World Foreign Cars,
18 Inc. v. Alfa Romera, S.p.A., 55 F.R.D. 26, 29 (S.D.N.Y. 1972) (denying class certification in part
19 because named Plaintiff was a former franchisee whose “sole interest is in the recovery of
20 damages” in contrast to current franchisees who have an incentive “that defendant remain in
21 business”); Allen v. Dairy Farmers of Am., Inc., 279 F.R.D. 257, 274 (D. Vt. 2011) (denying class
22 certification where current members “cannot be said to have their interests adequately represented
23 by parties that seek to financially recover from, punish, and prohibit those very same
24 activities”).35
25
35
26 See Ex. 63, Mark Raimondi, “Leslie Smith launches Project Spearhead, a fighter-driven effort
to get UFC athletes unionized,” MMA Fighting (Feb. 13, 2018) (“‘That’s the goal of the
27 MMAFA, to skewer the UFC and break it apart with this antitrust lawsuit,’ Smith said. ‘And I am
not down with that, either. I actually really like fighting for the UFC. I like fighting for the UFC
28
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1 Further, Plaintiffs are arguing that Zuffa should never have contracted with or paid
2 hundreds of class members. Plaintiffs allege that Zuffa restricted MMA athlete supplies to rivals
3 “by consistently maintaining significantly more Fighters under contract than it could use,”
4 thereby depriving rivals of athletes’ services needed to compete. Singer Rep. ¶¶ 193-94; Pls.
5 Mot. at 11; Ex. 49, Singer Dep. 312:18-23 (throughout the class period, Zuffa maintained
6 significantly more fighters under contract than it could use: “Yes”). According to Plaintiffs,
7 without the restrictions they challenge, Zuffa would contract with hundreds of fewer athletes over
8 the class period. Pls. Mot. 16; CAC ¶ 155 (calculating that Zuffa has 990 fight slots each year,
9 “far below the 1,500 slots necessary to provide each UFC Fighter under contract with three bouts
10 per year”). Plaintiffs assume, without proving, that in their preferred world that new rivals would
11 appear and contract with these class members. Ex. 50, Zimbalist Dep. 200:3-201:3; Ex. 49,
12 Singer Dep. 324:1-16. Plaintiffs thus are seeking relief that would result in hundreds of athletes
13 being let go by Zuffa, with no certain positions with other MMA promoters available to them.
14 III. Individual Evidence Of Liability Predominates Over Common Evidence.
15 “Rule 23(b) (3) provides that class certification is permissible if: ‘the court finds that the
16 questions of law or fact common to class members predominate over any questions affecting only
17 individual members, and that a class action is superior to other available methods for fairly and
18 efficiently adjudicating the controversy.’” Wang, 737 F.3d at 545 (quoting Fed. R. Civ. P
19 23(b)(3)). Rule 23(b)(3) is an “‘adventuresome innovation’” and thus subject to “Congress’s
20 addition of procedural safeguards” and “the court’s duty to take a ‘close look’ at whether
21 common questions predominate over individual ones.” Comcast, 569 U.S. at 34 (citations
22 omitted).
23 Plaintiffs contend that “Proof of an antitrust violation often focuses on a defendant’s
24 conduct and is therefore entirely common.” Pls. Mot. at 18. The Section 1 antitrust cases on
25

26
and I want to continue to do so. I think that the UFC’s business model is what has managed to
27 bring MMA to the mainstream and general public and I don’t want to just blow up the vehicle
that got us to where we are right now’”).
28
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1 which Plaintiffs rely are not comparable to the complex theory of liability that Plaintiffs propose
2 here, which requires individualized proof and mini-trials for each class member.
3 A. Plaintiffs’ Alleged “Scheme” Is Incapable Of Proof Of Liability With
Common Evidence.
4

5 Plaintiffs’ “Scheme” consists of a long list of different actions and contractual provisions,

1 Courts routinely deny motions for class certification premised on claims of coercion. Of
2 particular relevance here are antitrust claims asserted by franchisees who say they were “coerced”
3 into contracting with or purchasing goods or services from their franchisors. For obvious reasons,
4 whether any particular franchisee class member was “coerced” demands individualized inquiry
5 and complex, time-consuming fact-finding that defies class treatment. See, e.g., In re Beer
6 Distribution Antitrust Litig., 188 F.R.D. 557, 563-64 (N.D. Cal. 1999) (evaluation of whether
7 defendant forced independent distributors into exclusive contracts “would necessarily involve an
8 examination of the hundreds of individual relationships” including “the degree of control
9 Anheuser-Busch maintained over each distributor”).38 As the Third Circuit emphasized in Ungar,
10 “What is sufficient to coerce one buyer’s choice may not be sufficient to coerce another buyer’s
11 choice; an item that one buyer might accept voluntarily, another might accept only if forced to do
12 so.” 531 F.2d at 1219.
13 Plaintiffs’ reliance on High-Tech II and other Section 1 conspiracy cases is improper and
14 unpersuasive. Section 1 claims involving, for example, per se illegal price-fixing conspiracies
15 may proceed on a class basis because liability questions are premised on the common proof of a
16 single conspiracy. If any class action in the antitrust context has been certified where the claims
17 included coercion of class members, Zuffa is not aware of it.
18 Plaintiffs also cannot rely on their theory that Zuffa’s alleged “control” of “marquee
19 fighters” forces other MMA athletes to contract with Zuffa who otherwise would not. Pls. Mot. at
20 10. The issues of coercion of “marquee fighters” and who qualifies as a “marquee fighter”
21 require evidence unique to each athlete. And whether other MMA athletes signed with Zuffa
22 because of these “marquee fighters” depends on those athletes’ decision-making rationales at the
23 time of contracting.
24
contract negotiations. However, this has to do with the fact that I choose to fight in the UFC and
25
not to shop my services as an athlete to another organization.”); Ex. 18 at § 2 (Jim Miller: “I have
26 never made the choice to leverage one promotion against another in contract negotiations”).
38
See also Auto Ventures, Inc. v. Moran, 1997 WL 306895, at *3-4 (S.D. Fla. Apr. 3, 1997)
27 (collecting cases); Smith v. Denny’s Restaurants, Inc., 62 F.R.D. 459, 462 (N.D. Cal. 1974) (proof
of coercion of each franchisee precludes certification).
28
21
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1 B. Individualized Evidence Will Be Required to Determine Injury.
2 Plaintiffs argue that hundreds of class members should never have been under contract
3 with Zuffa, supra Argument II, but they offer no mechanism or method to determine which
4 members of the putative bout and identity classes would have contracted with Zuffa in the but-for
5 world (or upon entry of injunctive relief) or who would have had longer or shorter careers during
6 the class period in the absence of the “Scheme.” This failure means that Plaintiffs cannot reliably
7 and predictably determine which class members were actually injured as a result of the “Scheme.”
8 For example, in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 2013 WL
9 5979327 (N.D. Cal. Nov. 8, 2013), where the plaintiffs challenged certain limits on student-
10 athlete compensation, the court determined that changing those limits would result in a
11 “substitution effect” whereby different athletes may accept scholarships. The court denied
12 certification of a damages class under Rule 23(b)(3) because the “substitution effect among
13 individual” athletes “contributes to the impossibility of determining which class members were
14 actually injured.” Id. at *9; see also NCAA I-A Walk-On Football Players, 2006 WL 1207915, at
15 *8-9 (W.D. Wash. May 3, 2006) (declining to certify class of student-athletes challenging NCAA
16 cap on scholarships because raising the cap would require each class member to prove that they
17 would have obtained a scholarship). Similarly, individualized evidence would be required for
18 each athlete to show who would have been among the fewer athletes under contract with Zuffa
19 absent the challenged conduct. These inquiries would predominate over common questions.
20 C. Individualized Evidence Will Be Required To Show An Antitrust Violation In
21 A Properly Defined Relevant Market.

22 An essential element of each class member’s claims is proof of the relevant market. Order

1 existence of both output markets of locally staged MMA events and input markets of MMA
2 athletes as national geographic markets.
3 With respect to the output market of MMA events, Dr. Singer identifies the customers as
4 viewers (both attendees at live event venues and viewers of television broadcasts), cable
5 networks, broadcast networks, and sponsors. Ex. 49, Singer Dep. 288:15-289:2; Singer Rep.
6 ¶ 115. Courts have consistently and overwhelmingly found that purchasers of tickets for local
7 entertainment events would not be able to turn to events outside their local region.39
8 Plaintiffs lack evidence that output markets of MMA events staged at local venues are
9 national. In Dr. Singer’s deposition, he admitted that he did not analyze whether and to what
10 extent cable networks, broadcast networks, sponsors at venues, and purchasers of tickets to live
11 events could practicably turn to areas outside their own geographic area for supply of the relevant
12 product. Singer Daubert at 33; Ex. 49, Singer Dep. 289:15-290:5. Dr. Singer even described
13 UFC “counter-programming” of competitors’ events by holding events at nearby venues—
14 highlighting how competition for live events is local in nature. Singer Rep. ¶¶ 54, 56.
15 If the geographic market is not national, proof of monopoly power requires multiple
16 inquiries into localized markets, raising issues that are not common to a broad national class.
17 E.g., Heerwagen, 435 F.3d at 228-29 (affirming denial of class certification: “despite
18 Heerwagen’s argument that the relevant market for concert tickets is national, the district court
19 determined that it is local. The court concluded that Heerwagen could not therefore satisfy Rule
20 23(b)(3)”); Chmieleski v. City Products Corp., 71 F.R.D. 118, 177 (W.D. Mo. 1976) (“questions
21 of ‘geographic markets’ presented by these claims are not likely to be subject to proof by
22 evidence relating to the class or subclass as a whole”); In re Beer Distribution Antitrust Litig.,
23 188 F.R.D. 549, 555-556 (N.D. Cal. 1998) (“individual questions would predominate in the
24 determination of Plaintiffs’ attempted monopolization claim” because “the proof that will be
25
39
26 E.g., Heerwagen, 435 F.3d at 228 (concert production); Fishman v. Wirtz, 807 F.2d 520, 532 &
n.9 (7th Cir. 1986) (professional basketball games); Hecht v. Pro-Football, Inc., 570 F.2d 982,
27 988-89 (D.C. Cir. 1977) (professional football ticket sales); United States v. Syufy Enterprises,
903 F.2d 659 (9th Cir. 1990) (first-run motion picture exhibitors).
28
23
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1 relevant to that determination will be based on facts specific to each local area”).
2 IV. Rigorous Analysis Shows No Common Impact From the Alleged “Scheme.”
3 “In antitrust cases, impact often is critically important for the purpose of evaluating
4 Rule 23(b)(3)’s predominance requirement because it is an element of the claim that may call for
5 individual, as opposed to common, proof.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d
6 305, 311 (3d Cir. 2008); see also Blades v. Monsanto Co., 400 F.3d 562, 572 (8th Cir. 2005). To
7 meet the predominance requirement of Rule 23(b)(3), plaintiffs must show common impact
8 (antitrust injury) to all or virtually all class members. In re High-Tech Employee Antitrust Litig.,
9 289 F.R.D. 555, 567 (N.D. Cal. 2013); In re Rail Freight, 2017 WL 5311533, at *87–88
10 (collecting cases and concluding that under 23(b)(3), “5% to 6% constitutes the outer limits of a
11 de minimis number of uninjured class members” above which certification is not appropriate
12 (emphasis in original)).
13 Plaintiffs offer multiple arguments to support common impact, but only Dr. Singer’s
14 regression, which Plaintiffs contend shows , attempts to
15 40
demonstrate that the “Scheme” harmed all or virtually all class members. Pls. Mot. at 26.
16 Contrary to Plaintiffs’ assertion, the evidence does not show that all or virtually all class members
17 were injured.
18 A. Rigorous Analysis Using Actual Wages Rather Than A Novel Wage Share Theory
19 Shows No Common Antitrust Injury.

20 Dr. Singer concludes that there is antitrust injury to all or virtually all of the Bout Class

21 based on regression analyses finding a negative relationship between two things: (1) the number

23
40
Plaintiffs also estimate average damages, not individual injury, by Dr. Singer’s comparison of
24 Zuffa’s wage share to two other MMA promoters, and Dr. Zimbalist’s comparison of athletes’
25 share of Zuffa’s revenue to the share of revenue paid in the NFL, NBA, NHL, MLB and one
boxing promoter which they include in their Motion as evidence of impact. Pls. Mot. at 25;
26 Singer Rep. ¶¶ 247-48; Ex. 7, Zimbalist Errata Table 4-E, 5-E. These estimates of “average”
damages do not attempt to estimate antitrust injury to individual class members or to demonstrate
27 that all or virtually all class members within such average estimates were damaged. Ex. 50,
Zimbalist Dep. 38:15-25; Ex. 49, Singer Dep. 62:16-63:6, 227:17-22.
28
24
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1 percentage of athlete compensation of total event revenues (the athletes’ “wage share”). Singer
2 Rep. ¶¶ 180-87, 230-31, 306. A central and fatal flaw to Dr. Singer’s regression is his use of
3 wage share as the dependent variable in his regression. Singer Dep. 105:1-16; Singer Dep. II
4 481:1-8. As set forth in Zuffa’s separate Daubert motion to exclude Dr. Singer’s testimony,
5 Plaintiffs seek to make this the first known case to use wage share to measure an alleged common
6 impact. The common method applied by labor economists and accepted by courts in antitrust
7 cases to measure an anticompetitive effect on compensation is regressions with actual
8 compensation as the dependent variable. Singer Daubert at 13-20. For example, in High-Tech II,
9 on which Plaintiffs rely, those plaintiffs showed that all or virtually all class members were
10 injured based on a regression using actual wages, and not wage share, as the variable of interest.
41
11 985 F. Supp. 2d at 1207-08. Dr. Singer has cited a single case, Arizona Travel Nurses, where an
12 expert has used the wage share method, and that expert was Dr. Singer (and, as explained infra,
13 his analysis was not accepted by the Court). Dr. Singer used wage share because the nurses there,
14 unlike athletes competing in the UFC, were paid a “percentage of their billings”—that is, actual
15 compensation was specifically measured as a share of revenue. Singer Daubert at 14.
16 Plaintiffs’ expert assesses impact only in relation to athletes’ wage share. Singer Dep.
17 105:1-16. However, it is undisputed that the compensation in dollars paid to Zuffa athletes has
18 increased during the class period. Topel Decl. ¶¶ 17-18 (“In short, athletes at all levels of
19 rankings enjoyed increases in compensation over the class period.”); Ex. 49, Singer Dep. 124:15-
20 125:3. When Plaintiffs’ regression is run to determine if the “Scheme” impacted athletes’
21 compensation, not their compensation as a fraction of event revenue, it shows that athletes were
22 not harmed. Topel Decl. ¶ 22. If this class were certified, it would be the first class certified
23 based on purported impact to athletes’ wage share when Plaintiffs’ own regression model applied
24 to actual wages shows no impact on actual compensation. Singer Daubert I.A.1.
25

1 Plaintiffs wrongly assert that the viability of wage share is not a class issue. Pls. Mot. at
2 31 n.65. At the class certification stage, Plaintiffs are required to put forward a method capable
3 of proving injury and damages with class-wide evidence, and the Court is required to “resolve
4 any factual disputes necessary” to determine if Plaintiffs can put forward a methodology “that
5 could affect the class as a whole.” Ellis, 657 F.3d at 982 (emphasis in original). Wage share is
6 incapable of doing so.
7 B. The “Foreclosure Share” Has Not Proven Common Impact.
8 1. Dr. Singer Does Not Prove Foreclosure of Competition.
9 Dr. Singer’s foreclosure share is the foundation of his finding of impact to all or virtually
10 all class members—namely, he concludes that as Zuffa’s foreclosure share increased, athletes’
11 wage share decreased. Singer Rep. ¶ 186. But, by Dr. Singer’s own admissions, foreclosure
12 share is “tautological.” Ex. 49, Singer Dep. 44:16-45:12. Dr. Singer’s regressions do not
13 estimate the degree to which Zuffa foreclosed any market; rather, foreclosure is an input into the
14 regression. Id. at 39:1-4; 40:4-41:24. Because foreclosure is an input for measuring the effect of
15 exclusionary conduct, the definition of foreclosure depends on what someone concludes is
16 42
exclusionary. “If one were to draw the line at 25 months and if all of the contracts came in at 24
17 months, then it’s almost tautological. If that’s how we define foreclosure, then the foreclosure
18 would come in at less than 30 percent.” Ex. 64, Singer Dep. II 385:7-17. Here, Dr. Singer
19 defines foreclosure as 30-month exclusive contracts. Singer Rep. ¶ 306. Zuffa’s foreclosure
20 share is “spit out” of a Microsoft Excel file and “the regression finds a relationship between that
21 foreclosure share and the fighters wage share.” Ex. 49, Singer Dep. 40:23-41:14. Dr. Singer
22 never does an econometric analysis of whether contracts of that duration foreclose competition
23 and what contract durations might have anticompetitive effects. Topel Decl. ¶ 24. The term
24 “foreclosure” is merely a label Dr. Singer attaches to a tabulation of 30-month contracts.
25
42
26 Even for purposes of proving average class wide damages, the Ninth Circuit has held that the
“proposed damages model must measure only the damages that are attributable to the theory of
27 liability.” Doyle v. Chrysler Grp., LLC, 663 F. App’x 576, 579 (9th Cir. 2016).
28
26
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1 When he calculates alleged impact, Dr. Singer does not measure the difference between
2 the real world and a world without the Plaintiffs’ “Scheme.” Instead his regressions measure the
3 differences from a “but-for world where in which the foreclosure share wasn’t as high as it was in
4 the actual one.” Ex. 49, Singer Dep. 31:10-32:1. Dr. Singer chooses a 0%, 20% or 30%
5 foreclosure share for his but-for world based on his understanding and legal review of “levels that
6 I thought a Court would deem at least not anticompetitive based on my understanding of
7 precedent in the similar cases.” Ex. 64, Singer Dep. II at 370:23-371:5. These but-for world
8 foreclosure percentages are “not from anywhere else. We are trying to find a level of foreclosure
9 that would be deemed not anticompetitive by a Court.” Id. at 371:8-13; see Topel Decl. ¶¶ 24.
10 He acknowledged “there’s a lot of ways that you can get there.” Ex. 49, Singer Dep. 181:3-20.
11 2. Dr. Singer’s Foreclosure Shares Use Averages that Do Not Show Impact on
Individual Class Members.
12
Although Dr. Singer claims his regressions are capable of evaluating impact on individual
13
class members, they are not. Dr. Singer’s foreclosure shares are only averages. At no point does
14
Dr. Singer evaluate whether each class member was compensated less when a foreclosure share
15
was high than when foreclosure share was low. Instead, Dr. Singer applies the same foreclosure
16
share, an average across athletes and bouts, to all athletes competing at a given point in time and
17
measures the average correlation between this average foreclosure share and all athletes’ actual
18
compensation share. Topel Decl. ¶ 25; Ex. 49, Singer Dep. 31:18-32:1; 40:4-41:21; 237:5-11;
19
Ex. 64, Singer Dep. II 564:16-22; Singer Rep. ¶¶ 230, 310 & Table 6. He then compares the
20
compensation share these athletes received in the actual world (using the average foreclosure
21
share) to the compensation they receive in the but-for world (i.e., in a world where Dr. Singer
22
inputs a lower average foreclosure share), which is determined by the average correlation across
23
all athletes. At no point does he consider, nor does his model allow for, any differences in the
24
foreclosure that athletes might face at a given time. This says nothing about whether individual
25
class members were impacted because it assumes that class members were equally foreclosed in
26
the actual world.
27

7 Id. (Nonetheless, , comprising 27 percent of the
8 compensation paid to the class, suffered zero damages or actually benefitted by the higher
9 foreclosure share according to Singer’s model. Supra p. 15-16.) As a result, Zuffa’s alleged
10 ability to exert monopsony power over athletes’ wages will necessarily differ among athletes who
11 have different options for purchasers of their services at the time of contracting. Dr. Singer
12 acknowledges this is true in theory, but uses a methodology that masks these differences by using
13 the average relationship between foreclosure share and wage share for athletes of different ranks.
14 In denying class certification, courts have rejected assumptions based on averaging like
15 those of Dr. Singer. See In re Optical Disk Drive Antitrust Litig., 303 F.R.D. 311, 321 (N.D. Cal.
16 2014) (regression in an antitrust case insufficient to support class certification where the
17 regression provided an aggregate overcharge percentage but did not attempt “to show that all or
18 nearly all purchasers were overcharged in that amount, or any amount at all”); Reed v. Advocate
19 Health Care, 268 F.R.D. 573, 591 (N.D. Ill. 2009) (rejecting methodology which used “average
43
20 base wage” because it “does not indicate whether each putative class member suffered harm”).
21 Plaintiffs justify Dr. Singer’s methodology by citing to four Section 1 cases in which regressions
22 were run to show individual impact. Pls. Mot. at 19 n.46. But it does not suffice that courts have
23 accepted some regressions that are capable of proving individual impact; Dr. Singer must show
24 that his regression is capable of doing so, which it is not.
25

1 C. Plaintiffs’ Other Evidence Fails to Show Common Antitrust Injury.
2 Plaintiffs rely on Dr. Singer’s regression analysis to show that all or virtually all class
3 members were injured. Only that analysis actually is offered as an attempt to identify individual
4 injury. Plaintiffs do rely on other evidence to support their arguments on common impact, but
5 that evidence, without the regression analysis, does not show widespread actual injury. Nor does
6 Plaintiffs’ expert assert that it would. Singer Dep. 100:8-19; id. 102:7-18 (“I would not offer this
7 model [showing compensation moving together] by itself as proof of common impact”).
8 Even if this other evidence did support Plaintiffs’ arguments, because the Supreme Court
9 requires rigorous analysis of class certification, courts do not consider evidence such as this
10 sufficient without a valid econometric or statistical analysis showing that all or virtually all class
11 members were injured. Dukes, 564 U.S. at 358 (anecdotal evidence alone insufficient to certify a
12 companywide class); Casey v. Home Depot, 2016 WL 7479347, at *23 (C.D. Cal. Sept. 15, 2016)
13 (“anecdotal evidence . . . may not necessarily be representative of the Proposed Class”). Plaintiffs
14 cite no cases certifying a class based only on the type of evidence discussed in this section.
15 1. Plaintiffs’ Other Methods of Proving Common Impact Raise Individual Issues.
16 a. Documentary and Testimonial Evidence.
17
Plaintiffs contend that “documentary and testimonial evidence of suppressed
18
compensation” is capable of proving impact with common evidence. Pls. Mot. at 23. But this
19
evidence is not common to the class and instead speaks to issues affecting individual class
20
members. Rosenberg v. Renal Advantage, Inc., 2013 WL 3205426, at *12 (S.D. Cal. June 24,
21
2013), aff'd, 649 F. App’x 580 (9th Cir. 2016) (Rule 23(b)(3) not satisfied where the “Court
22
would have to resort to a series of mini-trials to determine hours worked for each class member”).
23
For example, Plaintiffs point to Zuffa’s implementation of a so-called “sponsorship tax”
24
as common evidence reflecting suppressed compensation as a result of Zuffa’s monopsony
25
power. Pls. Mot. at 23. But the “sponsorship tax’s” impact on athletes is far from uniform.
26

44
1 The policy also changed during the class period once Zuffa began its apparel
2 sponsorship with Reebok. Ex. 65. Moreover, the purpose the “sponsorship tax” was to increase
3 overall compensation to athletes by improving the reputation of the sport of MMA, and Prof.
4 Topel has demonstrated that other streams of revenues to athletes were increasing at the same
5 time. Ex. 44, Compensation Dep. 156:12-158:5; Topel Decl. ¶ 31. Thus, any assessment that the
6 “sponsorship tax” impacted an athlete’s compensation would require an individualized
7 assessment of: when the athlete was under contract with Zuffa; the sponsors the athlete had at a
8 particular point in time; whether the “tax” affected those sponsors during that time; and whether
9 the athlete negotiated an exception.
10 Other documents Plaintiffs cite would similarly require individualized assessments, are
45
11 inadmissible hearsay, or are misquoted.
12 Plaintiffs also contend that Dr. Singer “analyzed Fighter compensation as a percentage of
13 Event Revenues over time” and that the reduced share over time is evidence of impact. Pls. Mot.
14 at 24. Dr. Singer again looks at averages and not individual class members. And this “analysis”
15 consists of reciting statistics from a few documents referencing athlete share. Singer Rep. ¶ 189.
16 Dr. Singer in no way analyzes the data involved let alone attempts to determine whether, if athlete
17 share was going down, it was the result of the “Scheme” as opposed to individual issues.
18

1 The documentary and testimonial evidence shows Zuffa does not. For athletes of various skill
2 and experience levels, Zuffa negotiates the compensation terms of its contracts with athletes and
46
3 their representatives.
4

5 Ex. 44, Compensation Dep. 31:5-33:3. As a result, Zuffa’s
6 compensation decisions are based
7
47
8 Id. at 29:17-33:3. These compensation decisions
9 may differ because Zuffa executives often have different views and assessments of the
10 appropriate compensation for any given athlete because “everybody’s judgment is different.” Ex.
11 43, Silva Dep. 370:19-21. Negotiations over compensation relate to the form of compensation,
48
12 not just the amount. Ex. 92 (Forms of UFC Compensation).
13 Zuffa’s athlete compensation includes discretionary elements as well. During each event,
14 athletes are eligible to receive four performance-based bonuses for Performance of the Night or
15 Fight of the Night. Ex. 92. Zuffa also gives out other discretionary bonuses to “fighters that
16

49
1 participated on a fight card that performed exceptionally well.” Ex. 42, Fertitta Dep. 179:1-10.
2 The result of individualized negotiations over compensation and bonuses is that athlete
3 compensation shows substantial variation across various characteristics (rank, wins, UFC
4 experience, weight class). Exs. 87-89; Blair Rep. ¶ 79 & App’x F.
5 Courts have consistently denied class certification where compensation is based on
6 individualized factors rather than a standard compensation structure. E.g., Reed, 268 F.R.D. at
7 583, 591-92 (denying class certification despite plaintiffs’ claim of a “fixed pay structure” and
8 “wage grid”); Fleischman v. Albany Med. Ctr., 2008 WL 2945993 at *6 (N.D.N.Y. Jul. 28, 2008)
9 (“the reasons affecting the wage of a particular nurse or class of nurses, though contested, involve
10 too many variables and provide too much ambiguity to carry a motion for class certification on
11 the issue of injury-in-fact”). In Arizona Travel Nurses, the court rejected Dr. Singer’s opinion
12 that a compensation structure existed for traveling nurses, as opposed to nurses paid on a per diem
13 basis, because individualized assessments would have been needed to determine compensation.
14 Johnson, 2009 WL 5031334 at *9 (“traveling nurses often negotiate individual compensation
15 arrangements,” including differences in bonuses and benefits; “these numerous individual issues
16 mean that antitrust impact cannot be shown effectively with common proof for traveling nurses”).
17 Plaintiffs rely heavily on High-Tech II, in which the district court certified a narrow class
18 of technical employees, based on a regression analysis using actual wages to show common
19 impact along with findings that “all Defendants used formal administrative compensation
20 structures and divided jobs into pay bands, zones, grades, and ranges by which they evaluated and
21 paid employees in groups in relationship to other groups.” 985 F. Supp. 2d at 1197-98. Here,
22 there is no clear way to categorize athletes at Zuffa and Plaintiffs have not proposed one. Instead,
23 Dr. Singer acknowledges “negotiations centered around the compensation of comparable
24 Fighters.” Singer Rep. ¶ 225; Pls. Mot. at 28. But identifying “comparable Fighters” is
25
49
26 Ex. 43, Silva Dep. 440:18-441:22 (explaining he and Sean Shelby would make
“recommendations” on discretionary bonuses and then it was “up to Dana and Lorenzo to
27 finalize”); Ex. 82; Ex. 83; Ex. 84. Plaintiffs themselves challenge the discretionary nature of
bonuses as part of the “Scheme.” Pls. Mot. 9.
28
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1 necessarily individualized and incapable of common proof. Zuffa’s determination of who
2 constitutes a “comparable athlete” is based on athlete-specific factors such as record, popularity,
3 notoriety, nationality, and accomplishments that are debated between Zuffa and an athlete’s
50
4 representative and has to be individually determined for each athlete. In other words, there is no
51
5 “grid” to categorize different athletes and Plaintiffs offer none; rather, a determination of impact
6 would require hundreds if not thousands of “mini trials” which would overwhelm the
7 predominance of common questions. Blair Rep. ¶ 79 & App’x F, Ex. 87-89.
8 For the same reasons, Plaintiffs’ argument that Zuffa maintains a policy of “internal
9 equity” also fails. Pls. Mot. at 27-28. Plaintiffs rely on one former Zuffa employee’s testimony
10 that he tried to make sure that “comparable fighters with comparable records are getting paid
11 comparable amounts.” Id. Plaintiffs have not established a policy applicable to all of Zuffa.
12 Even taking the testimony as a policy, the evidence is clear that who constitutes a “comparable
52
13 athlete” is an individual assessment incapable of class-wide proof.
14 Plaintiffs also support their compensation structure argument with a handful of
15 documents, but these documents do not evidence a compensation structure and cannot overcome
16 the vast documentary, testimonial, and actual compensation evidence in this case. For example,
17

18

19

20

21

22 The evidence shows that Zuffa’s
23 50
Ex. 43, Silva Dep. 369:4-12 (“you can have a difference of opinion of where I’m going, I think
24 that he is similar to this guy, they can counter and go, we don’t see him as similar to that guy, we
see him as similar to this guy.”); Ex. 85, White Dep. 370:22-372:16.
25 51
Ex. 44, Compensation Dep. 34:2-9; see also id. 112:9-12.
52
26 Even the documents Plaintiffs cite show the wide variation in compensation form and amount
for “comparable” athletes. Ex. 86, cited at Singer Rep. ¶ 225, n.543 (
27
).
28
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53
1 compensation did not proceed in such a lock-step manner. Ex. 87. Finally, Plaintiffs’
2 inaccurately state that Zuffa’s economists did not respond or contest any of this evidence. Topel
3 Decl. ¶ 28; Blair Rep. ¶ 79, Table 4, App’x F.
4 2. Plaintiffs’ Econometric Evidence Of A Compensation Structure Does Not
Show Common Impact.
5
Plaintiffs assert that a separate econometric analysis by Dr. Singer can account for the
6
substantial variation in athlete compensation (but is not offered to establish antitrust injury). Ex.
7
49, Singer Dep. 102:7-15. Specifically, Plaintiffs rely on Dr. Singer’s: (1) regression that
8
attempts to identify the percentage of athlete compensation that is explained by “common factors”
9
and (2) “sharing analysis” that tries to assess the degree to which gains or losses are broadly
10
shared across the class. Pls. Mot. at 28. Dr. Singer errs in both steps.
11
Dr. Singer’s “common factors” regression cannot distinguish whether common or
12
individual factors account for the variation in athlete compensation. Dr. Singer runs a regression
13
with only common variables (rank, gender, etc.) that purports to explain 78% of the variation in
14
compensation. Id. But when the same regression is run with only athlete-specific factors (i.e.,
15
variables requiring individual proof), such as strikes or takedowns landed in a bout, the results
16
show that these variables account for 79% of the variation in athlete compensation. Topel Decl. ¶
17
29.
18

19

20

21
Dr. Singer’s “sharing analysis” is similarly flawed. The analysis includes data from an
22
11-year period, five years of which fall outside the class period, and purportedly assesses the
23
degree to which gains or losses in one athlete’s compensation is statistically associated with gains
24
or losses to athletes overall. Pls. Mot. at 28. For class certification, Plaintiffs need to show the
25
degree to which this is true during the class period. When Prof. Topel ran Dr. Singer’s exact
26

1 regression but excluded the pre-class data, there is no longer evidence that an individual athlete’s
54
2 compensation is correlated with other athletes’ compensation. Topel Decl. ¶ 30.
3 V. Plaintiffs’ Evidence Does Not Establish Injury Or Damages To Support Class
Certification.
4

5 In Comcast, the Supreme Court made clear that where an expert’s methodology cannot

6 distinguish between impact and damages caused by the theory of harm or other unchallenged

7 conduct, class certification must be denied. 569 U.S. at 38 (“In light of the model’s inability to

8 bridge the differences between supra-competitive prices in general and supra-competitive prices

14 A. Plaintiffs’ Experts’ Methods Of Showing Impact And Damages Rely On A
Theory Of Liability That Is Inconsistent With The Alleged “Scheme.”
15
Neither Dr. Singer nor Dr. Zimbalist performs a damages analysis isolating the conduct
16
alleged in the “Scheme” described in Plaintiffs’ motion. Pls. Mot. at 8-11. Dr. Singer’s
17
regressions are based on the number of athletes Zuffa has signed to exclusive contracts lasting at
18
55
least 30 months, but he has acknowledged that his regressions do not account for other aspects
19
of the “Scheme.” Ex. 49, Singer Dep. 20:7-21:5 (“it is clear that only certain aspects of the
20
challenged conduct that are being captured by the foreclosure variable”); id. at 30:3-23 (“the set
21
of actions encompassed in the challenged conduct is broader than the set of actions that are
22

23 54
Plaintiffs wrongly assert that Prof. Topel admitted that a change in compensation to one Fighter
24 is correlated with changes to compensation of all Fighters in the prior year. Pls. Mot. at 30.
Topel Decl. ¶ 30. Prof. Topel corrects Dr. Singer’s error in two steps: (1) by running a single
25
regression with athlete compensation data; and (2) by removing the improperly included pre-class
26 data. Topel Rep. ¶¶ 270-71. Plaintiffs cite the incomplete result after step 1 as Prof. Topel’s
alleged “concession,” but fail to include that after step 2, the regression shows no correlation.
55
27 Courts have routinely found contracts of that length are not anticompetitive or illegal. Singer
Daubert Mot. at 21 n.12 (citing cases).
28
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1 being captured by the regression approach”). Dr. Zimbalist measured a world with “more
2 competition” to a world with less competition (Zuffa). Mot. to Exclude Testimony of Dr.
3 Zimbalist, ECF No. 522 at 16-17 (“Zimbalist Daubert”) at 16-17. Dr. Zimbalist testified that for
4 purposes of his damages model, any conduct that reduced competition would lead to the same
5 damages result, regardless of whether it is the challenged conduct in this case. Id.
6 This incongruity violates the Supreme Court’s holding in Comcast that the “first step in a
7 damages study is the translation of the legal theory of the harmful event into an analysis of the
8 economic impact of that event.” Comcast, 569 U.S. at 38 (emphasis in original). Plaintiffs’
9 motion abandons core allegations in the Complaint and defines a different “Scheme.” They argue
10 that by focusing on only part of the “Scheme” that damages are underestimated, but that is an
11 unproven assumption. Zuffa has submitted evidence that the conduct that was once part of the
12 Amended Complaint is pro-competitive. Topel Decl. ¶¶ 11-15, 32-34. Plaintiffs accordingly
13 offer no model to show that the allegations of their Amended Complaint cause injury or damages.
14 Even if Plaintiffs were to abandon their Amended Complaint and narrow their claims to
15 the “Scheme,” Dr. Singer’s model does not test the effect of the entirety of the “Scheme,”
16 including pro-competitive acquisitions of firms that otherwise would have gone out of business.
17 Topel Decl. ¶ 32; see Singer Dep. 251:10-254:9 (Singer did not test effect of acquisitions
18 standing alone). This failure to measure the benefits to class members of Zuffa’s acquisitions is
19 fatal to the 23(b)(3) analysis. Kottaras, 281 F.R.D. at 25 (denying certification of class seeking
20 damages from an unlawful merger: “Since benefits must be offset against losses, it is clear that
21 widespread injury to the class simply cannot be proven through common evidence”).
22 Without a proper link between liability and damages, Plaintiffs have no reliable evidence
23 to show that the “Scheme”—as opposed to some other combination of conduct—caused common
24 impact and damages to the putative class.
25 B. Plaintiffs’ Econometric Evidence Of Common Impact Is Deficient Under
Comcast.
26

27 Even if it was focused on a coherent theory of liability, Plaintiffs’ methodology suffers

28 from the inability to separate lawful from unlawful conduct described in Comcast. Dr. Singer’s

1 regression shows that as foreclosure share increases, athletes’ wage share decreases, which he and
2 Plaintiffs contend is evidence of anticompetitive impact. Pls. Mot. at 24; Singer Rep. ¶ 186. But
3 athletes’ wage share will fall any time event revenues rise or rise faster than athletes’
4 compensation at that event. Dr. Singer’s regression does not control for the variety of legal and
5 pro-competitive conduct that impact event revenues, for example Zuffa advertising and
6 promoting an event. Topel Decl ¶¶ 19-20; see also Singer Daubert at 19. Plaintiffs even
7 discount to zero Zuffa’s demonstrated success in building a business and growing MMA as a
8 sport as having any role in generating event revenues. Topel Decl ¶¶ 8-10.
9

10

11

12

13 Dr. Singer even admitted in his deposition that he never attempted to disaggregate the
14 value added by athletes from that added by Zuffa. Singer Dep. 123:6-20 (“I think you’re getting
15 at the same question now, just asked in a different way which is have I done a decomposition of
16 the marginal revenue product between the fighters and—and Zuffa, and the answer is no, I have
17 not done that decomposition”); id. 119:8-24. As a result, Dr. Singer’s regression is
18 methodologically incapable of demonstrating impact or damages caused by the challenged
19 conduct or “Scheme” as opposed to impact from other, legal and pro-competitive conduct. Topel
20 Decl. ¶ 20. In such a circumstance, “Comcast requires the Court to find that the Rule 23(b)(3)
21 predominance requirement has not been satisfied.” Brazil v. Dole Packaged Food, LLC, 2014
22 WL 5794873, at *13 (N.D. Cal. Nov. 6, 2014) (decertifying a class where expert’s model could
23 not identify “how much of the identified premium was due to Dole’s ‘All Natural Fruit’ labeling
24 claim [i.e., the challenged conduct] and how much was due to its advertising expenditures”).
25 VI. A Class Action Is Not The Superior Method For Relief Because Plaintiffs Cannot
Show Which Class Members Would Have Been Harmed.
26

27 The Ninth Circuit has “held that when the complexities of class action treatment outweigh

28 the benefits of considering common issues in one trial, class action treatment is not the ‘superior’

1 method of adjudication” for purposes of Rule 23(b)(3)(D). Zinser v. Accufix Research Inst., Inc.,
2 253 F.3d 1180 (9th Cir. 2001), opinion amended on denial of reh’g, 273 F.3d 1266 (9th Cir.
3 2001). “If each class member has to litigate numerous and substantial separate issues to establish
4 his or her right to recover individually, a class action is not ‘superior.’” Id. at 1192 (citations
5 omitted). As set forth above, numerous individual issues concerning each class member,
6 including the issue of coercion, is required in this case, rendering the class action not superior.
7 Moreover, when “damages suffered by each putative class member are large, this factor
8 weighs [against] certifying a class action.’” Zinser, 253 F.3d at 1190. In Nguyen v. BDO
9 Seidman, LLP, 2009 WL 7742532 (C.D. Cal. Jul. 6, 2009), the putative class was “well-paid
10 employees” who were “seeking years worth of overtime back-pay, penalties, and attorney fees.
11 This weighs heavily against class certification here, as the putative class members have sufficient
12 monetary incentive to pursue their own claims.” Id. at *8. So too here—Plaintiffs allege over $1
13 billion in damages for a putative class of around 1,200 members, making individual actions both
14 viable and superior.
15 VII. The Identity Class Involves Predominantly Individual Issues.
16 Plaintiffs have abandoned their initial theory of liability for the Identity Class and now
17 claim that the “Scheme’s” alleged restrictions to athlete mobility depressed compensation for
18 their identity rights. Background § III, supra. Plaintiffs have failed to present a methodology to
19 show common impact to the Identity Class given the wide variety of identity rights at issue.
20 There are at least four categories for which athletes grant Zuffa the use of their identities:
21 (1) in UFC events and broadcasts; (2) in the UFC-branded video game; (3) in UFC-branded
22 merchandise; and (4) in appearances and advertising for Zuffa’s sponsors. Ex. 92. Not all
23 athletes grant Zuffa all of these rights, and within each grant of right there are variations in the
24 scope, exclusivity, and/or compensation for that grant of right that make proof of impact across
25 all grants of identity rights incapable with class-wide evidence. Id.
26 Plaintiffs’ class definition incorporates all athletes whose identities were “expropriated or
27 exploited” after December 16, 2010. Pls. Mot. at i. But Dr. Singer only evaluates impact and
28 damages for putative class members who received a payment during the class period or entered an
38
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1 agreement in the class period. Plaintiffs have put forward no evidence of impact or damages for
2 any putative member of the class falling outside either of Dr. Singer’s sub-classes.
3 A. Identity Subgroup 1.
4 Plaintiffs define Identity Subgroup 1 as any athlete “who received some identity-based
5 payments during the class period, such as for sponsorship, video games, merchandise royalties, or
6 56
pursuant to an athlete outfitting policy.” Pls. Mot. at 19. Dr. Singer does not evaluate how his
7 “foreclosure share” impacts the various forms of identity right payments that athletes receive. For
8 example, he does not evaluate how (or if) athletes’ compensation for merchandise rights (or any
9 other grant of identity rights) differed based on Zuffa’s foreclosure share. Nor does he conduct
10 any econometric analysis of the impact of the “Scheme” on athletes’ grant of or compensation for
11 identity rights.
12

13

14

15

16

17 Ex. 92. For example, Zuffa’s merchandise rights
18 agreements are voluntary and non-exclusive and thus do not prohibit athletes from contracting
19 57
with other third parties for merchandise deals. Id.
20

21 58
Plaintiffs and their expert have not
22 established impact to the Identity Class, much less analyzed the significant variations in grants of
23 and compensation for identity rights throughout the Identity Class.
24 56
Zuffa’s Motion for Partial Summary Judgment against Plaintiff Quarry on statute of limitations
25 grounds relates to him and other class members in Identity Subgroup 1. ECF No. 347.
57
26 Ex. 90 (

6 Dr. Singer’s unsupported assertion does not
7 prove common impact as required by Rule 23, rather it assumes that impact to all class members
8 occurred. See In re Florida Cement and Concrete Antitrust Litig., 278 F.R.D. 674, 684-685 (S.D.
9 Fla. 2012) (denying certification where “Dr. Singer offers no methodology for determining
10 whether pass-through actually occurred; instead, he simply assumes that for indirect purchasers
11 who bought pursuant to a cost plus contract, ‘the pass through rate would typically be one
12 hundred percent’”).
13

14 59

15 VIII. Plaintiffs Do Not Have Standing To Bring A Claim For Injunctive Relief.
16 Plaintiffs’ Motion does not argue for class certification pursuant to Rule 23(b)(2), but they
17 pled that such certification is proper and previously requested that the Court so certify the classes.
18 CAC ¶¶ 39, 44, 52, 172(a) and (b). Even if they did, Plaintiffs do not have standing to bring a
19 Rule 23(b)(2) claim for injunctive relief because they are former UFC athletes. “As the Supreme
20 Court explained, only current employees have standing to seek injunctive relief.” Ellis, 657 F.3d
21 at 988 (vacating a district court’s Rule 23(b)(2) certification in part because the class included
22 former employees who lacked standing to seek injunctive relief); Senne v. Kansas City Royals
23 Baseball Corp., 315 F.R.D. 523, 584 (N.D. Cal. 2016).
24